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ELCAllowedEnvironment & Land Case 54 of 2019· [2022] KEELC 15357 (KLR)

Caroline Wangui Mukuha (Suing on behalf of Peter Mukuha Mwangi as the Legal Representative ad Litem) v M'rukaria M'turuchiu

Environment and Land Court
14 December 2022
CNC K Nzili
478 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Meru (C K Nzili, J) dealt with the aftermath of a part-heard land suit in which the defendant died. Counsel for the defendant had informed the court on April 27, 2022 of the defendant's death, after the plaintiff had closed its case on February 3, 2022. On September 19, 2022 the court gave the plaintiff a last chance to file an application for substitution of the deceased defendant within one month, in default of which the suit would stand dismissed for non-compliance and non-prosecution. When the matter came up on October 24, 2022 the plaintiff had not complied and instead sought to withdraw the suit with no order as to costs. The defendant's counsel opposed, arguing the September 19, 2022 orders were self-executing and had taken effect, and urged costs since the matter was part heard. The court held that the plaintiff could not be blamed for the failure to substitute, the cause being disagreements among the deceased defendant's family members over letters of administration, and that counsel for the deceased effectively had no client to instruct him on costs. Relying on Order 25 rules 1 and 2 of the Civil Procedure Rules and the Supreme Court's decision in Jasbir Singh Rai on exceptions to the rule that costs follow the event, the court allowed discontinuance under Order 25 rule 2 and declined to award costs to the deceased defendant or his counsel.

Key legal issues

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01

Whether withdrawal of the suit should be permitted despite the self-executing dismissal orders of September 19, 2022

Holding

The court allowed discontinuance under Order 25 rule 2, noting the defendant's counsel did not oppose the application.

Reasoning

The deceased defendant's counsel had not opposed the withdrawal. The plaintiff's failure to substitute was attributable to family disagreements over letters of administration, not the plaintiff's fault. Order 25 rules 1 and 2 confer power to allow discontinuance on a plaintiff's application, so the court permitted withdrawal notwithstanding the earlier self-executing orders.

p. 2
02

Whether costs should be awarded to the deceased defendant or his counsel

Holding

No costs awarded; no justification to penalize the plaintiff.

Reasoning

Although the matter was part-heard and counsel urged costs, the reason for discontinuance was the inability to obtain substitution due to family disagreements over administration of the deceased defendant's estate. The plaintiff could not be blamed, and counsel for the deceased effectively had no client to instruct him, so costs were refused.

Legal principles established

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  • Costs follow the event, but the Supreme Court has recognised exceptions to that general rule.

Court orders

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  1. 1.Discontinuance of the suit allowed under Order 25 rule 2 of the Civil Procedure Rules
  2. 2.No order as to costs - no justification to penalize the plaintiff or award costs to the deceased defendant or his counsel

Authorities

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Legislation

  • Civil Procedure RulesOrder 25 rules 1 & 2

Cases cited (1)

  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others
    [2013] eKLR

    Costs follow the event, but there are exceptions to the general rule.

Jurisdiction invoked
Order 25 rules 1 & 2 of the Civil Procedure Rules (discontinuance of suit)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Caroline Wangui Mukuha (Suing on behalf of Peter Mukuha Mwangi as the Legal Representative ad Litem) v M'rukaria M'turuchiu", Case Analysis (2022). Environment & Land Case 54 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15357/eng@2022-12-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.